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A common sense approach taken by Employment Judge

May 30, 2023

We all know that harassment is a very wide concept and can cover a whole host of behaviours. It is not uncommon for us to hear, from employers when faced with a grievance or a claim, the words “oh come on, how can that be harassment?  The law really is an ass”. 

A recent case at the Watford Employment Tribunal concerned allegations of both racial and religious harassment. Mr Perera worked for Stonegate Pub Company Limited at the George pub in Harrow.  He was of Sri Lankan ethnic origin. He was employed as a Kitchen Team Member which involved various duties including taking a turn at cleaning. Mr Perera thought he was going to be trained up as a chef which was not the case. There came a point in time where he objected to being allocated cleaning work and was told by the employer that he might be dismissed if he refused to do that work. 

The claim of harassment on religious grounds focused on an allegation that Mr Perera was told that “Christian people like you wearing crucifixes we[re] put here only to do the cleaning”. The Judge did not accept that this was said. Mr Perera had complained about various matters during his employment and this was not one of them (he only raised this issue for the first time in the Tribunal papers).  The Judge found that, had this actually been said, Mr Perera would have complained about it long before. 

A further allegation arose when Mr Perera slipped on some oil and fell on the floor. His boss laughed at him when witnessing the incident. This was levied as a claim of racial or religious harassment.  The Judge did not accept that laughing at somebody who fell over amounted to harassment: “Whilst it might be tempting to hope that one colleague would only ever react in a sympathetic way towards the misfortune of another, common experience suggests this is not always the case. The slapstick element of a fall may prompt laughter”. Neither did the Judge accept Mr Perera’s theory that his boss deliberately poured the oil on the floor. 

While this case should not be viewed as a green light to laugh at your colleagues should they encounter misfortune, it does serve as a useful reminder that the test, when examining whether a particular act meets the test having an intimidating, hostile, degrading, humiliating or offensive, environment, is one of reasonableness.  It was not reasonable for the laughter to have had that effect on Mr Perera. 

Should you need any training or other assistance related to harassment please contact a member of the Blackadders Employment Team. 

Nicola Burns

Nicola Burns

Director of Operations

Marketing Team

+44 1382 342217

The opinions expressed in this site are of the author(s) only and do not necessarily represent the opinions of Blackadders LLP.

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